Campbell v. State

Decision Date14 May 1982
Docket NumberNo. 63,63
PartiesAnthony Wilson CAMPBELL v. STATE of Maryland.
CourtMaryland Court of Appeals

Victoria S. Keating, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DAVIDSON, Judge.

This case concerns the criminal responsibility of felons for the lethal acts of others. More particularly, it presents the question whether, under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 410, Maryland's so-called "felony-murder" statute, the killing of a co-felon during an armed robbery, by either a police officer attempting to apprehend him, or by a victim resisting the armed robbery, constitutes murder in the first degree on the part of the surviving felon.

On 5 February 1980, in the Criminal Court of Baltimore, the appellant, Anthony Wilson Campbell, pled guilty to first degree felony murder of a co-felon, assault with intent to murder a victim, and robbery of the same victim with a deadly weapon. A factual statement presented as the basis for the guilty pleas showed that on 19 September 1979, at approximately 12 midnight, the appellant and Rufus Branch (co-felon) entered a taxicab operated by Paul Alston (victim). The appellant sat in the back seat of the taxicab and the co-felon sat in the front seat. After requesting the victim to drive to a street in an area of deserted buildings, the co-felon pulled out a small caliber handgun, pointed it at the victim, and said, "This is a stick up." The co-felon then ordered the victim to hand him his money bag. The appellant said, "Do what he tells you. I have a gun too." The victim handed his money bag and his wallet to the co-felon and then looked at both the co-felon and the appellant. The appellant said, "He's seen our faces; we have to take him somewhere and kill him."

As the victim drove up the street, he saw two police cars. The victim drove alongside the police car of Officer Cruse and slammed on his brakes. At that point, the co-felon opened fire at the victim who returned the fire with his own handgun. Both the victim and the co-felon were wounded. Officer Heiderman, then on foot patrol, came to the victim's assistance and shot at the co-felon. The co-felon and the appellant then left the taxicab and began to run. The appellant hid in the vestibule of a nearby building.

Officer Heiderman and Officer Cruse chased the co-felon and ordered him to halt. The co-felon continued to run. Officer Heiderman hid behind a truck to reload his weapon. When Officer Heiderman emerged, the co-felon suddenly appeared from behind a vehicle and pointed his gun toward the officer. Officer Cruse shouted a warning to Officer Heiderman, who turned and shot the co-felon approximately four times. The co-felon fell to the ground, dead. An autopsy report revealed nine bullet wounds, five of which were potentially lethal. At least two of the nine wounds were inflicted by the victim. Under these circumstances, it is unclear whether the co-felon was killed by the victim or by the police officer.

A third police officer, Officer Steinman, arrested the appellant in the vestibule where he was hiding. After searching the appellant and finding that he did not have any weapons, Officer Steinman walked the appellant back to the victim's taxicab. At that time, the victim identified the appellant as one of his assailants. The victim's money bag and his wallet were found in the gutter of the street directly between the taxicab and the vestibule in which the appellant was found.

The trial court accepted the appellant's guilty pleas. Thereafter, the trial court convicted the appellant of first degree murder, assault with intent to murder, and robbery with a deadly weapon, and sentenced him to concurrent terms of life (all but 15 years suspended), 15 years, and 10 years respectively. The appellant appealed to the Court of Special Appeals. We issued a writ of certiorari before consideration by that Court.

Maryland Code, Art. 27, §§ 407-410 provide that certain types of murder shall be murder in the first degree. More particularly, § 410 provides in pertinent part:

"All murder which shall be committed in the perpetration of, or attempt to perpetrate ... robbery ... shall be murder in the first degree."

All murder not specified in §§ 407-410 is murder in the second degree. § 411. These sections do not create any new statutory crimes, but rather divide the crime of murder, as known at common law, into degrees. Jackson v. State, 286 Md. 430, 435-36, 408 A.2d 711, 715 (1979); State v. Frye, 283 Md. 709, 712-13, 393 A.2d 1372, 1373-74 (1978); Davis v. State, 39 Md. 355, 374 (1874).

With respect to the crime of murder as known at common law, this Court has recently stated in Jackson v. State, 286 Md. 430, 408 A.2d 711 (1979):

"At the common law, to which the inhabitants of Maryland are entitled, Md.Const. Declaration of Rights, Art. 5, homicide is the killing of a human being by another human being; criminal homicide is homicide without lawful justification or excuse; criminal homicide with malice aforethought is murder; malice aforethought is established, inter alia, upon commission of criminal homicide in the perpetration of, or in the attempt to perpetrate, a felony. Thus, at common law, homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice. 'The [felony-murder] doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force,except where it has been expressly abrogated by statute.' 1 The doctrine has not been abrogated by statute in this State." Jackson, 286 Md. at 435-36, 408 A.2d at 714-15 (footnote omitted) (citations omitted) (emphasis added).

This Court has held that under the felony-murder doctrine a participating felon is guilty of murder when a homicide has been committed by a co-felon. Stevens v. State, 232 Md. 33, 41, 192 A.2d 73, 78, cert. denied, 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963); Boblit v. State, 220 Md. 454, 457, 154 A.2d 434, 435 (1959), appeal dismissed sub nom. Brady v. State, 222 Md. 442, 160 A.2d 912 (1960); Shockley v. State, 218 Md. 491, 497, 148 A.2d 371, 374 (1959); see Veney v. State, 251 Md. 159, 174, 246 A.2d 608, 617 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969); see also Mumford v. State, 19 Md.App. 640, 643-44, 313 A.2d 563, 566 (1974). We have also held that under the felony-murder doctrine a participating felon is guilty of murder when a hostage is accidentally killed by a police officer attempting to apprehend robbers fleeing from the scene of an armed robbery. Jackson, 286 Md. at 442-43, 408 A.2d at 718-19. However, this Court has not previously considered whether under the felony-murder doctrine a participating felon is guilty of murder when, during an armed robbery, a police officer kills a fleeing co-felon in an attempt to apprehend him, or a victim kills a co-felon in an attempt to resist the armed robbery.

Courts in a majority of the jurisdictions in which the question has been considered have held that under the felony-murder doctrine a participating felon is not guilty of murder when the killing is done by a person other than the participating felon or his co-felons. E.g., People v. Antick, 15 Cal.3d 79, 87, 539 P.2d 43, 48, 123 Cal.Rptr. 475, 480 (1975); People v. Gilbert, 63 Cal.2d 690, 408 P.2d 365, 373, 47 Cal.Rptr. 909, 917 (1965), vacated on other grounds, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); People v. Washington, 62 Cal.2d 777, 402 P.2d 130, 133-34, 44 Cal.Rptr. 442, 445-46 (1965); Alvarez v. District Court In & For the City & County of Denver, 186 Colo. 37, 38-39, 525 P.2d 1131, 1131-32 (1974); Commonwealth v. Moore, 121 Ky. 97, 98-100, 88 S.W. 1085, 1086 (1905); Commonwealth v. Balliro, 349 Mass. 505, 514-15, 209 N.E.2d 308, 314 (1965); Commonwealth v. Campbell, 89 Mass. 541, 544-46 (1863); People v. Austin, 370 Mich. 12, 30-31, 120 N.W.2d 766, 774-75 (1963); Sheriff, Clark County v. Hicks, 89 Nev. 78, 506 P.2d 766, 768 (1973); State v. Canola, 73 N.J. 206, 226, 374 A.2d 20, 30 (1977); People v. Wood, 8 N.Y.2d 48, 50, 167 N.E.2d 736, 738-739, 201 N.Y.S.2d 328, 331-333 (1960); State v. Oxendine, 187 N.C. 658, 661-62, 122 S.E. 568, 570 (1924); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 227-35, 261 A.2d 550, 555-58 (1970); Commonwealth v. Redline, 391 Pa. 486, 495-96, 137 A.2d 472, 476 (1958), see Annot. 56 A.L.R.3d 239 (1974). The rationale underlying this rule is the "agency" theory of felony murder.

A classic statement of the agency theory appears in Commonwealth v. Campbell, 89 Mass. 541 (1863). There, the accused was participating in a riot growing out of the enforcement of a draft of men for the army. The question presented was whether under the felony-murder doctrine, the rioter could be guilty of murder if another person was killed by a soldier attempting to resist the mob's attack. The Supreme Court of Massachusetts stated:

"There can be no doubt of the general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it, and that, if he combines and confederates with others to accomplish an illegal purpose, he is liable criminaliter for the acts of each and all who participate with him in the execution of the unlawful design. As they all act in concert for a common object, each is the agent of all the others, and the acts done are therefore the acts of each and all.

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[T]he rule of criminal responsibility for the acts of others...

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